Did the Supreme Court make the right decision in upholding school vouchers?

Yes.

After decades of often animated conjecture and debate, the Supreme Court
concluded in Zelman that Cleveland’s publicly-funded voucher program is
constitutional. The Court’s long-awaited decision is good news for choice
advocates in general and thousands of low-income Cleveland school children in
particular. In its 5-4 decision the Court reversed the Sixth Circuit Court’s
conclusion that the Cleveland voucher program violates the First Amendment’s
prohibition on the establishment of religion. Writing for the Court, Chief
Justice Rehnquist concludes that the Cleveland voucher program does not put the
government in the unconstitutional position of sponsoring religious
indoctrination. Justices O’Connor, Scalia, Kennedy and Thomas joined on the
Court’s opinion.

A full picture of Zelman’s impact on school choice will not emerge for some
time. Although five Justices signed the majority opinion, the numerous
concurring and dissenting opinions evidence a divided Court. Despite the
complicated nature of this decision, however, four points are already clear.

First, Zelman will prove important for the way other voucher programs are
structured. In stark contrast to the Supreme Court’s 1954 Brown decision, the
Zelman opinion is closely divided and comparatively narrow, evidencing the
justices’ collective caution. By confining itself to the technical
constitutional question presented, the Court steered clear of endorsing voucher
programs as a matter of education policy. However, the opinion makes clear that
carefully crafted voucher programs can successfully navigate through the often
murky First Amendment waters. The decision will likely stimulate prompt
legislative activity.

Second, the Court expressly noted the larger educational context that framed
Cleveland’s voucher program. Specifically, the Court remarked that the voucher
program is nested within a broader array of educational options that include
such public choice options as magnet and charter schools. It is difficult to
over-emphasize the substantive weight of this point. In many ways, this
issue—raised at oral argument by Justice O’Connor—pivots on a denominator
question. The religious neutrality of a voucher program is not determined by
focusing on how many students take their vouchers to religious schools, as this
represents only one portion of the denominator in question. Thus, the fact that
96 percent of students participating in the Cleveland voucher program attend
religious schools, according to the Court, is of no constitutional concern.

Third, the Court places great weight on the nature and source of the choice
decision itself. The Court makes the point that whether vouchers end up at
public, private, or religious schools flows not from any governmental action but
“only as a result of numerous, private choices of individual parents of
school-age children.” Thus, the Court concludes that it is constitutionally
“irrelevant” that the vast majority of voucher recipients selected religious
schools. Such a result does not dislodge the Court’s characterization of the
voucher program as religiously neutral.

Fourth, through its decision in Zelman, the Court effectively shifts
responsibility for the development of voucher programs from the judiciary into
the collective hands of lawmakers, governors, and citizens. That is, we can now
expect choice supporters and opponents to take their cases to lawmakers and
governors—rather than judges—with greater alacrity. (Of course, no decision will
preclude courts from further involvement with disputes over choice programs and
establishment-clause issues.) This represents a significant shift in terms of
how the debate surrounding school choice is cast. Policy rather than
constitutional law will likely moor future school choice debates. We should
expect a fuller, more robust discussion of the political and policy issues
surrounding school choice, including vouchers, especially if, as is likely,
policymakers continue to pursue school choice as a viable education reform
option. Political leaders and policymakers can no longer point to constitutional
uncertainty as an excuse to deflect attention from school choice policies. It
should become equally clear how political leaders discharge their obligations
and address the political and policy factors shaping school choice.

Michael Heise, Ph.D., is professor of law at Case Western Reserve University
and served in the elder Bush’s administration as deputy chief of staff to the
U.S. Secretary of Education. This article was previously published in the
Education Gadfly
www.edexcellence.net/gadfly/.